AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 28, 2001
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
MASSACHUSETTS 04-2295040
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
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TECHNICAL COMMUNICATIONS CORPORATION
Copy to:
LAWRENCE H. GENNARI, ESQUIRE
GADSBY HANNAH LLP
225 FRANKLIN STREET
Boston, Massachusetts 02110
(617) 345-7000
CALCULATION OF REGISTRATION FEE
Title of Proposed Maximum Proposed Maximum Securities Amount to be Offering Price Per Aggregate Offering Amount of to be Registered Registered(1) Share(2) Price(2) Registration Fee ----------------------------------------------------------------------------------------------------------------- Common Stock, $.10 par value per share (the "Common Stock").. 350,000 $.99 $341,490.00 $81.62 ----------------------------------------------------------------------------------------------------------------- |
(1) Pursuant to Rule 416, there are also being registered such additional shares of Common Stock as may become issuable pursuant to stock splits or similar transactions.
(2) The proposed maximum offering price has been estimated pursuant to Rule
457(h) solely for the purpose of calculating the registration fee. It is
not known how many of these shares will be purchased or at what price. A
portion of the shares (83,500 shares) are issuable upon exercise of options
with fixed exercise prices ranging from $.90 to $.96. Pursuant to Rule
457(h)(1), the aggregate offering price and the fee have been computed upon
the basis of the price at which the options may be exercised. The shares
representing unissued options (266,500 shares) do not have a fixed exercise
price. The proposed maximum offering price per share for such shares has
been calculated pursuant to Rule 457(h) as $.99, which is the average of
the high and low prices of the Registrant's Common Stock as listed on
Nasdaq on December 20, 2001.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I are not required to be filed with the Securities and Exchange Commission (the "Commission") as part of this Registration Statement on Form S-8. Such documents and the documents incorporated by reference in this Registration Statement on Form S-8 pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act and will be given to employees participating in the Technical Communications Corporation 2001 Stock Option Plan (the "Plan").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The following documents have been previously filed by Technical Communications Corporation (the "Company") with the Securities and Exchange Commission and are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2000 ("Fiscal 2000");
2. The Company's Quarterly Reports on Form 10-QSB for the quarters ended December 30, 2000, March 31, 2001 and June 30, 2001;
3. All other reports of the Company filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of Fiscal 2000; and
4. The descriptions of the Company's Common Stock which are contained in the registration statements filed under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement on Form S-8 and prior to such time as the Company files a post-
effective amendment to this Registration Statement on Form S-8 which indicates
that all securities offered hereby have been sold, or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement on Form S-8 and to be a part hereof
from the date of filing such documents.
Not applicable.
Not applicable.
Section 67 of Chapter 156B of the Massachusetts General Laws provides that indemnification of directors, officers, employees, and agents of the Registrant may be provided to the extent specified in or authorized by (i) its articles of organization, (ii) a by-law provision adopted by the stockholders, or (iii) a vote adopted by the holders of a majority of the shares of stock entitled to vote on the election of directors.
Section 6 of the Registrant's Articles of Organization, as amended, provides that no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages by breach of fiduciary duty as a director to the extent provided by applicable law notwithstanding any provision of law imposing such liability; provided, however, that Section 6 shall not eliminate the liability of a director (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under section 61 or 62 of the Business Corporation Law of the Commonwealth of Massachusetts, or (iv) for any transaction from which the director derived an improper personal benefit. This provision shall not be construed in any way so as to impose or create liability. The foregoing provisions of Section 6 shall not eliminate the liability of a director for any act or
omission occurring prior to the date on which Section 6 became effective. No amendment to or repeal of Section 6 shall apply to or have any effect on the liability or alleged liability of any director of the Registrant for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.
Not applicable.
(a) The following exhibits have been filed (except where otherwise indicated) as part of this Registration Statement:
Exhibit No. Description
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4 Technical Communications Corporation 2001 Stock Option Plan.
5 Opinion Letter of Gadsby & Hannah LLP as to legality of shares
being registered.
23a Consent of Gadsby & Hannah LLP (contained in Opinion filed as
Exhibit 5).
23b Consent of Grant Thornton LLP.
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The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post- effective amendment to this registration statement:
(i) To include any additional or changed material information on the plan of distribution.
(2) For the purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. in the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this Registration Statement on Form S-8, and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Concord, Commonwealth of Massachusetts on this 27th day of December, 2001.
TECHNICAL COMMUNICATIONS CORPORATION
By: /s/ Carl H. Guild, Jr.
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Carl H. Guild, Jr., Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Name Capacity Date
---- -------- ----
/s/ Carl H. Guild, Jr. President, Chief Executive December 27, 2001
------------------------ Officer, and Chairman of the
Carl H. Guild, Jr. Board of Directors
(principal executive officer)
/s/ Michael P. Malone Chief Financial Officer, December 27, 2001
------------------------ Treasurer, and Assistant
Michael P. Malone Clerk (principal financial and
accounting officer)
/s/ Mitchell B. Briskin Director December 27, 2001
------------------------
Mitchell B. Briskin
/s/ David A. B. Brown Director December 27, 2001
------------------------
David A.B. Brown
/s/ Robert T. Lessard Director December 27, 2001
------------------------
Robert T. Lessard
/s/ Donald Lake Director December 27, 2001
------------------------
Donald Lake
/s/ Thomas E. Peoples Director December 27, 2001
------------------------
Thomas E. Peoples
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EXHIBIT INDEX
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Sequentially Numbered
Exhibit No. Description Page Number
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4 Technical Communications Corporation 9
2001 Stock Option Plan
5 Opinion Letter of Gadsby Hannah LLP 16
as to legality of shares being registered
23a Consent of Gadsby Hannah LLP
(contained in Opinion filed as Exhibit No. 5) 16
23b Consent of Grant Thornton LLP 17
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Exhibit 4
Options granted hereunder may be either Incentive Stock Options or Non-statutory Stock Options, at the discretion of the Board and as reflected in the terms of the written option agreement.
If an Option should expire or become unexercisable for any reason without having been exercised in full, the unpurchased Shares that were subject thereto shall, unless the Plan shall have been terminated, become available for future grant under the Plan.
Notwithstanding any other provision of the Plan, shares issued under the Plan and later repurchased by the Company shall not become available for future grant or sale under the Plan.
represented by each Option; (v) to interpret the Plan; (vi) to prescribe, amend and rescind rules and regulations relating to the Plan; (vii) to determine the terms and provisions of each Option granted (which need not be identical) and, with the consent of the holder thereof, modify or amend each Option; (viii) to accelerate or defer (with the consent of the Optionee) the exercise date of any Option, consistent with the provisions of Section 5 of the Plan; (ix) to authorize any person to execute on behalf of the Company any instrument required to effectuate the grant of an Option previously granted by the Board; and (x) to make all other determinations deemed necessary or advisable for the administration of the Plan.
a) Non-Statutory Stock Options may be granted only to Employees, Consultants, or Directors. Incentive Stock Options may be granted only to Employees. An Employee, Consultant or Director, who has been granted an Option may, if he is otherwise eligible, be granted an additional Option or Options.
b) Neither the Plan nor any Option granted hereunder shall confer upon any Optionee any right with respect to continuation of employment, consulting relationship or directorship with the Company, nor shall it interfere in any way with his or her right or the Company's right to terminate his or her employment, consulting relationship or directorship at any time.
In the case of an Incentive Stock Option granted to any other Employee, the per Share exercise price shall be no less than 100% of the fair market value per Share on the date of grant.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such exercise in the form required by the Option Agreement has been given to the Company in accordance with the terms of the Option Agreement by the person entitled to exercise the Option and full payment for the Shares with respect to which the Option is exercised has been received by the Company. Full payment may, as authorized by the Board, consist of any consideration and method of payment allowable under Section 8(c) of the Plan. Until the issuance (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the stock certificate evidence such Shares, no right to vote or receive dividends or any other right as a shareholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the Option. The Company shall issue (or cause to be issued) such stock certificate promptly upon exercise of the Option. Upon receipt by the Company of written notice of exercise of the Option in the form required by the Option Agreement and full payment for the Shares with respect to which the Option is exercised, the Optionee shall be deemed to be the holder of record of the Shares, notwithstanding that certificates representing such Shares shall not then be actually issued and delivered to the Optionee. No adjustment shall be made for a dividend or other right for which the record date is prior to the date the stock certificate is issued, except as provided in Section 12 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the number of Shares which thereafter may be available, both for purposes of the Plan and for purchase under the Option, by the number of Shares as to which the Option is exercised.
i. who is at the time of their death an Employee, Consultant or Director of the Company and who shall have been in Continuous Status as an Employee, Consultant or Director since the date of grant of the Incentive Stock Option, the Incentive Stock Option may be exercised, at any time within six (6) months following the date of death (but in no event later than the date of expiration of the term of such Incentive Stock Option as set forth in the Option Agreement), by the Optionee's estate or by a person who acquired the right to exercise the Incentive Stock Option by bequest or inheritance, or beneficiary designation, but only to the extent of the right to exercise that would have accrued had the Optionee continued living and remained in Continuous Status as an Employee, Consultant or Director six (6) months after the date of death; or
ii. which occurs within thirty (30) days (or such other period of time not exceeding three (3) months as is determined by the Board, with such determination being made at the time of grant of the Incentive Stock Option) after the termination of Continuous Status as an Employee, Consultant or Director, the Incentive Stock Option may be exercised, at any time within Six (6) months following the date of death (but in no event later than the date of expiration of the term of such Incentive Stock Option as set forth in the Option Agreement), by the Optionee's estate or by a person who acquired the right to exercise the Incentive Stock Option by bequest or inheritance, or beneficiary designation, but only to the extent of the right to exercise that had accrued at the date of termination.
of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an Option.
In the event of the proposed dissolution or liquidation of the Company, each outstanding Option will terminate immediately prior to the consummation of such proposed action, unless otherwise provided by the Board. The Board may, in the exercise of its sole discretion in such instances, declare that any Option shall terminate as of a date fixed by the Board and give each Optionee the right to exercise his Option as to all or any part of the Optioned Stock, including Shares as to which the Option would not otherwise be exercisable. In the event of a proposed sale of all or substantially all of the assets of the Company, or the merger of the Company with or into another corporation where the Company is not the surviving corporation, the Option shall be assumed or an equivalent option shall be substituted by such successor corporation or a parent or subsidiary of such successor corporation. In the event that such successor corporation refuses to assume the Option or to substitute an equivalent option, the Board shall, in lieu of such assumption or substitution, provide for the Optionee to have the right to exercise the Option as to all of the Optioned Stock, including Shares as to which the Option would not otherwise be exercisable. If the Board makes an Option fully exercisable in lieu of assumption or substitution in the event of a merger or sale of assets, the Board shall notify the Optionee that the Option shall be fully exercisable for a period of thirty (30) days from the date of such notice, and the Option will terminate upon the expiration of such period.
i. any increase in the number of Shares subject to the Plan, other than in connection with an adjustment under Section 12 of the Plan;
ii. any change in the designation of the class of person eligible to be granted Options; or
iii. any material increases in the benefit accruing to participants under the Plan.
As a condition to the exercise of an Option, the Company may require the person exercising such Option to represent and warrant at the time of any such exercise that the Shares are being purchased only for investments and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required by any of the aforementioned relevant provisions of law.
The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained.
(a) Continuance of the Plan shall subject to approval by the shareholders of the Company within twelve (12) months before or after the date the Plan is adopted. If such shareholder approval is obtained at a duly held shareholders' meeting, it must be obtained by the affirmative note of the holders of a majority of the outstanding shares of the Company and shall be solicited substantially in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder.
(b) If any required approval by the shareholders of the Plan itself or of any amendment thereto is solicited at any time otherwise than in the manner described in Section 18(a) hereof, then the Company shall, at or prior to the first annual meeting of shareholders held subsequent to the granting of an Option hereunder to an officer or director, do the following:
i. furnish in writing to the holders entitled to vote for the Plan substantially the same information which would be required (if proxies to be voted with respect to approval or disapproval of the Plan or amendment were then being solicited) by the rules and regulations in effect under Section 14(a) of the Exchange Act at the time such information is furnished; and
ii. file with, or mail for filing to, the Securities and Exchange Commission four copies of the written information referred to in subsection (i) hereof not later than the date on which such information is first sent or given to shareholders.
Exhibit 5
[LETTERHEAD OF GADSBY HANNAH LLP]
December 28, 2001
Technical Communications Corporation
100 Domino Drive
Concord, Massachusetts 01742
Ladies and Gentlemen,
We have acted as counsel for Technical Communications Corporation, a Massachusetts corporation (the "Company"), in connection with the preparation of the Company's Registration Statement on Form S-8 proposed to be filed with the Securities and Exchange Commission on or about December 28, 2001 (the "Registration Statement").
The Registration Statement covers the registration of shares of common stock, $0.10 par value per share, of the Company (the "Shares"), which are issuable by the Company pursuant to its 2001 Stock Option Plan (the "Plan").
We have reviewed the corporate proceedings of the Company with respect to the authorization of the Plan by the Board of Directors, and the issuance of the Shares thereunder. We have also examined and relied upon originals or copies of such corporate records, instruments, agreements, or other documents of the Company, and certificates of officers of the Company as to certain factual matters, as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. In our examination, we have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed by us in original or copy form, and the competence of each individual executing any document.
This opinion is limited solely to the Massachusetts Corporation Laws, as applied by courts located in Massachusetts.
Technical Communications Corporation
December 28, 2001
GADSBY HANNAH LLP
Based upon and subject to the foregoing, and further subject to the due authorization and approval of the Plan by the stockholders of the Company with respect to incentive stock options, we are of the opinion that the Shares, when issued and delivered upon the exercise of options or awards pursuant to the Plan and against the payment of the purchase price therefor, as specified in such Plan or documents governing such awards, will be validly issued, fully paid, and non-assessable.
This opinion may be relied upon only by you in connection with the above transactions, and it may not be used or relied upon by any other person for any purpose whatsoever, other than as specifically required by law, without, in each instance, our prior written consent. We hereby consent to the filing of this opinion, as an exhibit to the Registration Statement.
Very truly yours,
/s/ Gadsby Hannah, LLP |
Exhibit 23b
Consent of Grant Thornton LLP
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our reports dated November 1, 2001 (except for the second paragraph of Note 9, as to which the date is December 27, 2001) accompanying the 2001 consolidated financial statements of Technical Communications Corporation and subsidiaries appearing in the 2001 Annual Report of the Company to its shareholders and included in the Annual Report on Form 10-K for the year ended September 29, 2001 which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference in the Registration Statement of the aforementioned reports.
/s/ GRANT THORNTON LLP
Boston, Massachusetts
December 27, 2001
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